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Helping Employees Stretch their Paychecks: The Benefits of Boosting Employee Financial Wellness
March 20, 2018 WEBCAST
SHRM [Society for Human Resource Management]

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Fifth Circuit Reverses Long-Standing Practice of Deferring to Plan Administrators' Factual Determinations Even Absent Valid Discretionary Language
"[T]he importance of this issue may be increasing due to the growing trend among states to prohibit discretionary clauses, making many more ERISA cases potentially subject to the de novo standard of review. The takeaway is that if discretionary authority language is absent or unenforceable, factual determinations (including medical necessity) will not benefit from deferential review -- no circuit now carves out fact-based decisions for special treatment[.]" [ Ariana M. v. Humana Health Plan of Texas, Inc. , No. 16-20174 (5th Cir. Mar. 1, 2018)]
Thomson Reuters / EBIA

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Is Your Short-Term Disability Program Covered by ERISA?
"To determine whether a plan fits within this safe harbor exception, the label and intent of the employer are not controlling. Instead, an employer must answer these 4 questions ... [1] Who is getting paid? ... [2] How much are the payments? ... [3] What source is the payment coming from? ... [4] Why are the payments being made?"
Graydon

How Can Employers Navigate Multiple Leave Laws?
"Businesses need to figure out how to create and maintain policies that balance compliance, ease of administration and cost considerations in the best way for their organization ... A single policy may be easier to manage and update with changing laws, but it will also be more costly ... [H]aving multiple policies may create morale issues when there are different entitlements at different worksites ... [B]usinesses may want to adopt a baseline policy and build from there using supplements or separate handbooks by location[.]"
Society for Human Resource Management [SHRM]

Bill to Improve HSAs Would Permit Pre-Deductible Coverage of Preventive Care
"The Bipartisan HSA Improvement Act [would] ... [1] Clarify that certain services and prescription drugs that prevent chronic disease progression are preventive care that will not be subject to a deductible; [2] Allow employers to provide primary care, chronic disease prevention, and other high-value services at on-site and near-site medical clinics without imposing a deductible; [3] Permit the use of HSA funds to pay for medical expenses for adult children up to age 26; and [4] Permit HSA contributions if a spouse has a health FSA."
Wolters Kluwer Law & Business

ERIC and Broad Coalition Push Health Savings Account Reforms for Omnibus
"ERIC and other coalition members have released a budget estimate showing that these HSA fixes would have only a nominal impact on the federal budget -- thus eliminating one of the primary objections that could have prevented these needed reforms and modernization provisions from being included in the coming omnibus spending package.... The package of reforms are individual bills that have been aggregated, in part, into H.R. 5138 ... Also part of the package is H.R. 365 [.]"
The ERISA Industry Committee [ERIC]

Single-Payer Health Care: Opportunities and Vulnerabilities
"A bigger government role in the health system could bring down prices, but those prices represent income to hospitals, physicians, and drug companies, which they will fiercely resist reducing. People may not have to pay premiums or anything at the point of service, but they will pay higher taxes. The absence of deductibles or copays would remove financial barriers to accessing needed care but could also result in more unnecessary care."
JAMA Forum

New ERISA Claims Procedures for Plans Providing Disability Benefits Effective April 1, 2018
"Appeal denial notices should be revised to include the time limitation as to when a claimant can bring a claim in federal court under Section 502(a). All notices must also be presented in a culturally and linguistically appropriate manner, which means that the plan must provide oral language services to claimants such as answering questions in a non-English language and providing assistance with filing claims in any applicable non-English language."
Holland & Knight

New Disability Claims Procedure Regulations Take Effect on April 1, 2018
"If the new claims procedures are not followed, then the claimant will be deemed to have exhausted administrative remedies. As a result, the claimant would be allowed to immediately file a lawsuit to seek a review of the disability determination. The court reviewing the claim would not be required to give any deference to the prior decision of the plan as a result of the failure to follow the new claims procedures."
Duane Morris LLP

GAO Testimony before House Oversight Committee: Federal Regulations -- Opportunities to Improve the Effectiveness of and Transparency of Regulatory and Guidance Practices (PDF)
21 pages. "[T]his testimony discusses : [1] the extent to which the Departments of ... Health and Human Services (HHS), and Labor (DOL) adhered to Office of Management and Budget (OMB) requirements and internal controls when developing regulatory guidance and [2] agencies' compliance with the Congressional Review Act (CRA) for regulations promulgated during presidential transitions. We consistently found opportunities to improve the transparency and effectiveness of regulatory and guidance practices." [GAO-18-436T, March 14, 2018]
U.S. Government Accountability Office [GAO]

Rethinking Executive Compensation While Awaiting Section 162(m) Guidance (PDF)
"[T]he lost deductions may become a cost of doing business and a trade-off for the tax benefits corporations receive from the reduction in the corporate tax rate from 35% to 21% ... [P]otentially applicable techniques to preserve the compensation deductions or maximize other benefits [include] [1] Use nonqualified deferred compensation annuities.... [2] Maintain grandfathered plans.... [3] Set more challenging performance goals.... [4] Spread vesting.... [5] Award incentive stock options (ISOs)."
Fulcrum Partners LLC

State Tax Implications of Federal Tax Changes to Section 162(m)
"[R]olling conformity states will automatically incorporate the income tax base changes resulting from the changes to Section 162(m) unless they choose to affirmatively decouple from these provisions in the Act.... [S]tatic conformity states with fixed dates before the passage of the Act would not adopt the changes to Section 162(m) unless they amend their laws to conform to the Act.... [T]axpayers in these states will still have to separately track their starting point for state corporate income purposes, using the IRC in effect as of its fixed date (i.e., before the passage of the Act)."
Morgan Lewis

2018 Proxy Season: Early Trends in Pay Ratio Disclosure (PDF)
"The median pay ratio disclosed by these companies is 87x. The lowest ratio is 1x (Apollo Global Management, Dorchester Minerals and The Carlyle Group) and the highest ratio is 1465x (Fresh Del Monte Produce Inc.).... As expected, the pay ratio correlates with company size, with larger companies disclosing higher ratios."
Compensation Advisory Partners [CAP]

Pay Ratio Disclosures Mislead Investors
"An early tabulation of companies' first reported CEO pay ratios confirms what many observers had been expecting: taken as a whole, the disclosures are rife with misleading information.... The rule is intended to provide investors with more information with which to evaluate CEO compensation. However, in many cases the disclosures do no such thing. Most damning are examples of companies reporting dubiously low ratios."
CFO

The ABCs of NQDCs: They're Not DC Plans, Despite the Similarities (PDF)
"[B]ecause NQDC plans are not formally funded, the returns generated by participants' investment elections become an aggregate liability for the plan sponsor on the company's balance sheet. As a result, the selection of the investment menu is one of the key drivers of complexity in managing liabilities."
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